The Edmund D. Edelman Children’s Court in Los Angeles.
Presiding Judge Michael Nash will send an amended version of his controversial (and now invalidated) order easing media access to Los Angeles County’s juvenile dependency court to fellow judges, attorneys and other stakeholders for review as early as next week.
The fast action could sidestep a California appeals court decision from March 3, which struck down Nash’s 2012 order, promising more battles over media access in dependency courts to come.
Two out of three judges in California’s Second Appellate District ruled that Nash’s order wrongfully stripped individual judges of the discretion to decide on whether or not the media should be allowed into sensitive hearings involving the lives of alleged child victims of maltreatment. The opinion also stated that Nash’s rule unduly put the burden on children and their lawyers (or anyone else in the court) to argue why a reporter should not be admitted, rather than putting the burden on journalists to “persuade the court” why they should.
“The main thing that the court of appeals said is that I took away the discretion of the court on issues of legitimate interest,” Nash said in an interview with the Chronicle of Social Change. “So I will re-craft it [the order].”
While Nash said he has yet to write out those changes, he intends to modify the order so that judges in his court clearly have discretion, while recognizing case law that deems the press to have a legitimate interest in the functioning of the court.
“It’s a distinction without a difference,” he said.
David Estep, a lawyer for the Children’s Law Center of California (CLC), which appealed Judge Nash’s rule, would not comment on changes he had not yet seen.
“I know this is an important issue for him,” Estep said of Nash and press access to the courts. “In my mind the appellate opinion is pretty clear. But, [Judge Nash] is very good at interpreting law. I am sure he will find a way to interpret this in a way that helps him achieve his goals.”
This sets up a strange circumstance, wherein Los Angeles’ juvenile dependency court may have guidelines for allowing the press in that run against the intent of the appellate court decision.
“It’s his practice,” Estep said. “He makes a decision, and if people don’t like it they have to take it the court of appeals.”
Meanwhile, the Los Angeles Times has not made any public decision about whether it will fight the appellate court’s ruling. In February 2012, a Times reporter and lawyer tried to access a hearing involving a 15-year-old girl and her four younger siblings. The girl, through her CLC lawyer, objected to the Times’ presence. The judge in that case ultimately overruled CLC’s objection and granted The Times access. CLC appealed, which resulted in the appellate ruling invalidating Nash’s original order.
Calls to The Los Angeles Times’ legal department were not immediately returned. The Times has a few options: it could do nothing, petition to have the appellate decision depublished or file an appeal to the Supreme Court of California.
Nash said that a Supreme Court ruling in favor of keeping his original order in place “was a big if.”
But if that happened, he said, “I think ultimately the next step would be to go to the Judicial Council to adopt a statewide rule of court.”
“Put that in your pipe and smoke it.”
Nash expects to issue his revised order in the next few weeks, after stakeholders have a chance to weigh in.
Daniel Heimpel is the founder of Fostering Media Connections and the Publisher of the Chronicle of Social Change.
